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[2021] ZAGPJHC 862
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Genesis One Lighting (Pty) Limited v Jamieson and Others (3212/2019) [2021] ZAGPJHC 862 (23 July 2021)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, JOHANNESBURG
CASE
NO: 3212/2019
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
DATE:
23 JULY 2021
In
the matter between:
GENESIS
ONE LIGHTING (PTY) LIMITED
Applicant / Respondent
and
BRADLEY
LLOYD JAMIESON
First
Respondent / Appellant
STEAMLIGHT
FX (PTY) LIMITED
Second Respondent / Appellant
IRON
ICE (PTY) LIMITED
Third Respondent /
Appellant
RODNEY
GERSON FITTINGHOFF
Fourth Respondent / Appellant
BRAD
ANTHONY KALISH
Fifth Respondent / Appellant
ROBERT
LARRY KALISH
Sixth Respondent / Appellant
JASON
RIVKIND
Seventh Respondent / Appellant
JUDGMENT
This
judgment was handed down electronically by circulation to the
parties’ legal representatives by email.
Gilbert
AJ:
1.
The central issue to be
decided is whether the respondents’ appeal has lapsed. There
was no dispute between the parties that
this court has the
jurisdiction to grant such an order, rather than the appeal court.
[1]
2.
The applicant, who was successful in interdict proceedings against
the respondents, contends that the respondents’ appeal has
lapsed. The respondents dispute this.
3.
The applicant contends that the appeal has lapsed because the
respondents have failed to file with the Registrar a compliant appeal
record and to furnish copies of the record to the applicant
in terms
of uniform rule 49(7)(a). The applicant also contends that the
appeal has lapsed because the respondents have failed
to deliver
their heads of argument and practice note.
4.
The respondents counter this by asserting that they did timeously
file and furnish a compliant appeal record. The respondents accept
that they did not deliver their heads of argument and practice
note
timeously and have launched a counter-application seeking that this
court condone the late delivery of those heads of argument
and
practice note. The respondents in their counter-application also seek
a declaration that the appeal has not lapsed.
5.
The respondents have not sought condonation in relation to the
filing
and furnishing of the appeal record. This is because the respondents
adopt the position that the appeal record was timeously
filed and
furnished and is materially compliant, and that they have
therefore satisfied the requirements of rule 49(7)(a).
6.
The inquiry narrows to whether the respondents as the appellants
did
file and furnish a materially compliant appeal record, and if not,
what the consequences are of that failure.
7.
It should ordinarily be a straightforward exercise to consider
the
appeal record and decide whether it is materially compliant. It
should also be a straightforward exercise to determine when
that
compliant record was timeously filed with the Registrar and furnished
to the respondent in the appeal. But not so in the present
instance,
where these issues, including the facts, remain contentious although
four sets of affidavits have been exchanged.
8.
It is therefore necessary to have regard to the affidavits to
discern
the factual position.
9.
What is common cause between the parties in relation to the
prosecution of the appeal is that.
9.1.
on 19 June 2019 the respondents delivered their notice of appeal;
9.2.
on 10 September 2019 the respondents timeously made written
application to the Registrar
for a date for the hearing of the
appeal, as provided for in uniform rule 49(6)(a);
9.3.
on 29 June 2020, over nine months later, the applicant launched the
present application
seeking an order that the appeal had lapsed
because the respondents failed to deliver an appeal record and their
heads of argument
and practice note;
9.4.
after that, during July 2020, the respondents delivered their heads
of argument and
practice note;
9.5.
on 3 August 2020 the respondents launched their counter-application
for condonation
for the late delivery of their heads of argument and
practice note and for an order declaring that the appeal had not
lapsed.
10.
The applicant’s attorneys had on 22 November 2019 addressed a
letter to
the respondents’ attorneys asserting that the appeal
had lapsed. The respondents’ attorneys responded on 27 November
2019, disputing this and contending that all documents required in
terms of uniform rule 49 had been timeously delivered. The
respondents’ attorneys in a subsequent letter dated 6 January
2020 stated that the appeal record had been served “
electronically
on 10 September 2019 and physically during the same period”
.
11.
The applicant in its founding affidavit in paragraph 22 states
under oath
that:
“
I pause here to
emphasise that a proper and complete Record indexed and paginated had
not been served by Jacobs and that the only
document that was served
was a bundle of documents not indexed and not paginated referring to
the Court Application under Case
Number 3212/2019 as well as the
Application for Leave to Appeal. A typed Record of the address /
argument
a
quo
at
the hearing of the application for leave to appeal was also
delivered. I am advised that this purported “Record of Appeal”
does not comply with the requirements of a Record that needs to be
delivered by the Appellant.
”
12.
As stated, it should have been a straightforward exercise for the
respondents
to identify what constitutes the appeal record and to
prove delivery of that record. Instead the respondents’
response, and
factual version, is opaque.
13.
The respondents, having been challenged on the central aspect whether
they had
timeously furnished a compliant record to the applicant,
respond as follows in paragraph 26 of their answering affidavit:
“
On 27 of August
2019, the respondents delivered two copies of the indexed and
paginated record on the office of the applicant’s
attorneys in
accordance with rule 49. I attach, as “AA1”, a copy of
the track and trace report from the courier company
the respondent so
employed bearing out the date and time of delivery, the person who
signed for the delivery as well as photographic
evidence illustrating
the cover page of the documents delivered.
”
14.
The applicant takes issue with this averment as not demonstrating
proof of the
delivery of a compliant record. There is merit in this.
It cannot be ascertained from annexe “AA1” what documents
were
furnished by the respondents’ attorney to the applicant’s
attorney as constituting the “two copies of the indexed
and
paginated record” that the respondents contend was furnished to
the applicant’s attorney.
15.
The respondents continue in paragraph 27 of their answering
affidavit:
“
27.1
On 10 September 2019, the respondents delivered electronic copies of
the following.
27.1
First, there is the record comprising the judgment of the Court below
in the main application and in the
application for leave to appeal as
well as the transcribed argument of the proceedings
.
I point out that the papers in the application were already indexed
and paginated
.
27.2
Then, there is a bond of security for Genesis’ costs in the
appeal.
27.3
Third, there is the requisite power of attorney.
”
16.
The emphasis is mine, for reasons that will follow.
17.
The applicant in its replying affidavit disputes that what was
delivered was
a compliant record. The applicant states in paragraph
60 of its replying affidavit that “
[n]othing more than the
transcript of the argument in the court
a quo
and in the
application for leave to appeal, is what was delivered to the
applicant’s attorney. This does not constitute, and
appeal
record no appeal record was delivered.
” The applicant
disputes that any papers in the application
a quo
, which the
respondent contends were already “indexed and paginated”,
were delivered as part of the appeal record
18.
The respondents had a further opportunity their replying affidavit in
their
counter-application to explain clearly what constituted
the appeal record and when that record was filed and furnished. In
dealing with their averment that their attorneys had electronically
transmitted a copy of the record to the applicant’s attorneys
on 10 September 2019, the respondents qualify the averment as
follows in paragraph 17 of the replying affidavit in the
counter-application:
“
In the course
of my drafting this affidavit, it came to my attention that the
e-mail message do not contain the
a
quo
Court
Proceedings bundle. This appears to be a result of a technical
failure. In the event the applicant did not receive the Court
a
quo
proceedings’
bundle electronically, which has been enclosed in the hard copy
delivered to the applicant’s attorneys’
office, this was
clearly a
bona
fide
error,
which could not have caused any prejudice where it had already been
delivered in hard copy.
”
19.
As appears above, the applicant denied that the documents of the
court proceedings
a quo
had been physically delivered on
27 August 2019, and the respondents have not adduced
sufficiently cogent evidence to
demonstrate otherwise. And the
respondents belatedly accept that an electronic copy of the
application papers in the court
a quo
were not delivered
electronically on 10 September 2019.
20.
The respondents in paragraph 12 of their replying affidavit in the
counter-application
states that by 12 September 2019, certain
documents had been handed to the Registrar. In support of this the
respondents attach
to their affidavit filing sheets bearing the
Registrar’s date stamp.
21.
I proceed to decide the matter based upon what is common cause
between the parties,
alternatively cannot be seriously
disputed.
22.
On the respondents’ version, what they confirm was filed with
the Registrar
as constituting the appeal record is that which is
described in paragraph 12 of their affidavit in the
counter-application.
Although the respondents only attach the first
pages of the filing sheets to their affidavit, the complete filing
sheet with the
attached documents has been uploaded to the electronic
Caselines file under section 023 headed “Appeal Documents of
Appellant”
and which the respondents contend constitutes a
materially compliant appeal record.
23.
There is a bundle under an filing sheet / index headed “Index:
Judgments
Bundle” dated 10 September 2019 (section 023:3),
which contains the judgments of the court
a quo
in the main
interdict proceedings on 18 March 2019 and in the application
for leave to appeal on 31 May 2019. This bundle,
consisting of
36 pages is nothing more than the two judgments which the
respondents’ attorneys have paginated in manuscript
and then
attached to a filing sheet. The bundle bears none of the
characteristics of what is usually expected in a properly prepared
appeal record. For example, every tenth line on each page is not
numbered, although this is required in terms of uniform
rule 49(8)(a).
24.
The next bundle (section 23:4) commences with an index / filing sheet
dated
3 May 2019 that is simply labelled “Index” and
contains two items. The first item is a repeat of the judgment
a
quo
in the main interdict proceedings. The second item is the
respondents’ application for leave to appeal. Again, all that
the
respondents’ attorneys have done is attach these two
documents to a filing sheet. These documents are poorly paginated and
again do not have each tenth line numbered. It is also unexplained
why the judgment of the court
a quo
in the main application is
duplicated. As the date of the filing sheet to this bundle is 3 May
2021, which is before the application
for leave to appeal was heard
on 7 May 2021, it appears that what the respondents had done was
simply include a pre-existing bundle
as part of the appeal record.
25.
The next two bundles that the respondent contends forms part of the
appeal record
(sections 023:6 and 023:7) are not bundles prepared at
the instance of the respondents. Rather, these two bundles are
nothing other
than the affidavits and other papers in the main
proceedings
a quo
as they appeared before the court
a quo
,
the form of two paginated volumes. These are the indexed and
paginated papers that the applicant had prepared as the applicant
in
the main proceedings.
26.
This also then brings into focus what the respondents had stated in
their answering
affidavit in paragraph 27.1, which I repeat:
“
27.1
First, there is the record comprising the judgment of the Court below
in the main application and in the application
for leave to appeal as
well as the transcribed argument of the proceedings.
I
point out that the papers in the application were already indexed and
paginated
.
”
27.
Considering all the
affidavits as well as what the respondents themselves contend to be
the appeal record, it is clear that the
respondents did not compile
as part of the appeal record any of the notice of motion and
affidavits in the court
a
quo
,
let alone as compliant in the form as required by rule 49(8). The
respondents have not compiled an appeal record consisting of
the
notice of motion, affidavits and other documents that served before
the court
a quo
[2]
but have contented themselves with simply again filing with the
Registrar on 10 September 2019, purportedly as part of the
appeal record, the same indexed and paginated volumes that featured
in the proceedings
a
quo
.
28.
Two further bundles that the respondents contend form part of the
appeal record
(sections 023:9 and 023:10, and which are duplicated
under section 022) contain only the transcription of the argument
before the
court
a quo
. As the applicant points out, the
inclusion of the transcription does not advance the respondents’
case that they have filed
and furnished a compliant record,
particularly where it is unnecessary to include the argument before
the court
a quo
as part of the appeal record.
29.
Even should the matter be approached on the basis that all of these
documents
that were filed with the Registrar which according to the
respondents constitute the appeal record were furnished to the
applicant’s
attorneys, which the applicant disputes, it remains
that a noncompliant record was filed to the Registrar as required in
terms
of rule 49(7)(a). Given the deficiencies in what the
respondents contend is the appeal record, it is not surprising that
the
respondents have difficulty in performing what should have been a
relatively straight-forward exercise in pointing out what constitutes
the appeal record and its timely delivery.
30.
I therefore find that a compliant record was not filed with the
Registrar.
31.
The next issue is the consequences of that failure.
32.
As stated, the respondents adopted the position that a compliant
record had
been filed and have not sought condonation for any
non-compliance in relation to the record. The condonation application
is limited
to condonation for the late delivery of the respondents’
heads of argument and practice note. In any event, it is for the
appeal court to decide whether to grant condonation in relation to
any deficiency in the prosecution of the appeal, rather than
this
court. But that no condonation application has been made by the
respondents for the appeal court to consider may constitute
a factor
to be taken into account by this court in deciding whether the appeal
has lapsed.
33.
Rule 49(6)(a) expressly
provides that if written application to the Registrar for the hearing
of the appeal is not timeously made,
the appeal “
shall
be deemed to have lapsed
”
.
Accordingly, the consequence of a failure to comply with rule
49(6)(a) is a deemed lapsing of the appeal. Should there be a dispute
about this, then the court can be approached for the appropriate
declaratory relief as to whether the appeal has lapsed or not.
[3]
34.
In contrast, as pointed out by the respondents, non-compliance with
rule 49(7)(a)
relating to the filing and furnishing of an appeal
record does not contain a similar provision that there is a deemed
lapsing of
the appeal. Rather, rule 49(7)(d) providers that:
“
If the party
who applied for a date for the hearing of the appeal neglects or
fails to file or deliver the said copies of the record
within 40 days
after the acceptance by the registrar of the application for a date
of hearing in terms of subrule 7(a) the
other party may approach
the court for an order that the application has lapsed.
”
35.
Although rule 49(7)(d) does not refer to the “
appeal
”
as lapsed but rather “
the application
” as lapsed,
the application referred to is the application for a date for the
hearing of the appeal in terms of rule 49(6)(a),
the lapsing of which
would have the effect as the appeal itself having lapsed.
36.
One interpretation of rule 49(7) is that upon a failure of a party to
timeously
file and furnish the record, the appeal lapses, as is the
position with non-compliance with rule 49(6)(a). If this is
correct,
then the court when approached under rule 49(7) would be
confirming that the appeal has lapsed.
37.
An alternate interpretation of rule 49(7) is that if the
appellant fails
to file or furnish the record, the appeal is not
deemed to have lapsed (in contrast to rule 46(6)(a)) but the court
can then be
approached for an order to effectively decide whether the
appeal has lapsed rather than confirming what would already have been
a deemed lapsing of the appeal. This would enable the court to take
into account a variety of factors in deciding whether to grant
an
order that the appeal has lapsed.
38.
One of the those factors may be whether by the time the application
in terms
of rule 49(7)(d) is heard there is a compliant appeal record
and the appellant has launched an application for the appeal court
to
consider in due course as envisaged in rule 49(7)(a)(ii)
condoning its failure to have timeously filed and furnished that
record. Rule 49(7)(a)(ii) expressly provides that an appellant
who fails to timeously file and furnish the record can apply
for
condonation for the omission. The condonation application will
considered by the appeal court at the hearing of the appeal.
Rule 49(7)(c) further provides that the Registrar after delivery
of the copies of the record shall assign a date for the hearing
of
the appeal or for the application for condonation and appeal, as the
case may be. It is clear that it is for the appeal court
to consider
the condonation application. Accordingly, a court faced with an
application in terms of rule 49(7)(d) for an order
that the
appeal has lapsed may decline to an order that the appeal has lapsed
provided that there is an application for condonation
that will serve
before the appeal court in course.
39.
But, as stated, the
respondents have approached the matter on the basis that the appeal
record they contend was filed in September
2019 was compliant. I have
found that it is not compliant. The respondents have not launched any
condonation application for the
appeal court to consider. Whatever
merit there may have been in the respondents’ counsel’s
submission that the appeal
remains duly prosecuted unless and until
the court refuses to condone any defects in the records, relying upon
Fedco
Cape (Pty) Ltd v Meyer
1988
(4) SA 207 (E)
[4]
dissipates in
the absence of the respondents having launched a condonation
application for the appeal court to consider.
40.
The applicant has succeeded in demonstrating that the respondents
have failed
to comply with rule 49(7)(a) in relation to the
filing of a compliant record and is entitled to an order that the
application
for a date for the hearing of the appeal, and accordingly
the appeal, has lapsed in terms of section 49(7)(d). I
find
that this is so whichever of the interpretations of section
49(7)(d) are to prevail.
41.
It follows that the counter-application declaring that the appeal has
not lapsed
must fail.
42.
In the circumstances, it is unnecessary for me to consider the effect
of the
respondents’ failure to timeously deliver their heads of
argument and practice note or the related application for
condonation.
In any event, it would have been for the court hearing
the appeal to consider an application for condonation and not for
this court.
43.
There is no reason why the costs should not follow the result. I also
find no
reason to depart from the costs being on the usual scale.
44.
The following order is made:
44.1.
The first to seventh respondents’ application for a date for
the hearing of the appeal, and
accordingly the appeal, has lapsed.
44.2.
The first to seventh respondents, jointly and severally, are to pay
the applicant’s costs for
the applicant’s application
dated 29 June 2020.
44.3.
The first to seventh respondents’ counter-application dated 3
August 2020 is dismissed, with
the applicant’s costs to be paid
by the first to seventh respondents, jointly and severally.
Gilbert AJ
Date of hearing:
31 May
2021
Date of judgment:
23 July 2021
Counsel
for the applicant:
C
Garvey
Instructed
by:
Otto Krause Inc
Counsel
for the Respondents:
J J Meiring
Instructed
by:
Chad Jacobs
Attorneys
[1]
See
Nawa
and others v Marakala and another
2008
(5) SA 275
(BH), where a single judge found that he did have
jurisdiction to give an order declaring that an appeal had lapsed
for failure
to prosecute in terms of rule 50(1), which is comparable
to a deeming lapsing of an appeal in terms of rule 49(6)(a). In
neither
rule 49(6)(a) nor rule 50(1) is there a reference to a court
granting such an order, but the court nevertheless has jurisdiction
to make such an order.
A
fortiori
in
the present instance, where rule 49(7)(d) expressly provides that
the court can be approached for an order.
[2]
South
African Express Limited v Bagport (Pty) Ltd
[2020]
ZASCA 13
(19 March 2020), at para 23.
[3]
See
Nawa
above
for the comparable position under rule 50(1).
[4]
In
Fedco
,
an application for condonation had been made and would subsequently
be granted by the appeal court.